An Important Change to the Tennessee Statute of Limitations That Affects the Rights of the Mentally Disabled

For many years, the Tennessee statute of limitations was tolled for those of "unsound mind." That law has now changed, and the statue of limitations is tolled only for those who are "adjudicated incompetent." Tenn. Code Ann. Section 28-1-106. Here is the text of the newly worded statute:

If the person entitled to commence an action is, at the time the cause of action accrued, either under eighteen (18) years of age, or adjudicated incompetent, such person, or such person’s representatives and privies, as the case may be, may commence the action, after legal rights are restored, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from restoration of legal rights.

Here is how the bill was changed in Public Chapter 47 of the 2011 legislation:

SECTION 17. Tennessee Code Annotated, Section 28-1-106, is amended by deleting "of unsound mind" and by substituting instead "adjudicated incompetent" and is further amended by deleting the first reference to "the removal of such disability" and by substituting instead "legal rights are restored" and by deleting the second reference to "removal of such disability" and by substituting instead "restoration of legal rights".

Obviously, this change was intended to limit the rights of those persons who are of unsound mind but have not yet been declared legally incompetent.

Those who represent people with mental disabilities who face potential statute of limitations issues should attempt to have the court find that the disability existed at the time "the cause of action accrued." Hopefully, the courts will construe this provision to protect a person placed in this situation as well:

Day 1: unmarried person with no children or living parents is injured in horrible car wreck and is hospitalized but not incompetent.

Day 20: person contracts severe post-surgical infection after treatment for injuries in the wreck.

Day 25: person lapses into deep coma as a result of the massive nfection.

Day 150: person comes out of coma but is still hospitalized.

Day 179: person comes out of hospital and goes into rehabilitation facility.

Day 300: person leaves rehabilitation facility.

When should Tennessee’s one year statute of limitations expire for this person? He or she was not incompetent on the date the cause of action accrued but become incompetent shortly thereafter. However, this person was never "adjudicated incompetent" and if he or she does not file a lawsuit before day 366 there will be a statute of limitations defense asserted even though he or she was unable to investigate or take legal action for the first 300 days after the injury.